As parents, it is our duty to ensure that our children’s fundamental needs are met, including necessities such as food, clothing, shelter, healthcare, and education. When parents decide to end their marriage, child support becomes a crucial aspect of maintaining the well-being of the children involved. The non-custodial parent is responsible for contributing to the child’s welfare through financial assistance, ensuring that their needs continue to be met despite the separation.
In New York, child support laws are designed to protect the best interests of the child and ensure they receive the proper care and support they deserve. Understanding and following these laws and regulations can be challenging, which is why it is crucial to seek the guidance of a qualified and experienced Manhattan child support lawyer.
Don’t leave your child’s future to chance – contact the Law Office of Richard Roman Shum, Esq. today at (646) 259-3416 for a consultation to ensure your child’s needs are protected during and after your divorce.
What are the Rules of Child Support in NY?
New York calculates child support using the Child Support Standards Act (CSSA). The non-custodial parent must pay a percentage of their gross income: 17% for one child, 25% for two, 29% for three, 31% for four, and no less than 35% for five or more. Courts may also order payments for healthcare, education, and child care.
In New York, child support regulations are designed to ensure that children receive adequate financial support from their parents until they reach the age of 21. However, there are specific circumstances under which this obligation may end earlier due to what is known as “emancipation.”
Emancipation occurs when a child under the age of 21 gets married, joins the military service, or becomes self-supporting, thereby relieving the parents of their legal duty to provide financial support. Additionally, a child aged between 17 and 21 who moves out of the parental home and fails to comply with the parents’ reasonable commands may also be considered emancipated. This situation typically needs to be evaluated based on the specifics of the disobedience and the self-sufficiency of the child.
These rules prioritize the child’s needs while considering changes in their dependency status. Parents must continue to support their children financially unless one of these conditions for emancipation is met, ensuring that the child’s well-being is maintained regardless of the parents’ marital status.
It’s important for parents to understand these rules as they plan for their financial responsibilities towards their children. Knowing when and how the obligation of child support can end is crucial for both planning and compliance under state law.
Topic
Details
Obligation of Parents
Parents must provide for basic needs of children including food, clothing, shelter, medical, education and insurance.
CSSA Formula
New York’s CSSA calculates each parent’s financial obligation to support the children based on combined income above the poverty line and up to $143,000.
Basic Child Support Amount
A fixed percentage of combined parental income is used to determine child support, based on the number of children requiring support.
Percentage of Combined Income
17% for one child, 25% for two, 29% for three, 31% for four, and at least 35% for five or more children.
Higher-Income Parents
Court may use CSSA percentages or consider parent’s financial means and child’s needs for fair support order.
Modification of Child Support Order
Parties can file a petition for modification of child support order. Orders subject to automatic review every three years.
Income Imputation
Court can impute income to underemployed or unemployed parents to avoid paying child support.
Enforcement of Child Support
Child Support Enforcement Unit can garnish wages, claim a portion of unemployment benefits, tax refund or bank accounts. Non-payment could lead to loss of driver’s license or jail.
What Extra Costs Does Child Support Cover in New York?
In New York, child support goes beyond covering basic necessities like food, clothing, and shelter. The court may also require the non-custodial parent to contribute to additional expenses that support the child’s well-being and development. These costs are separate from the standard child support payment and include:
Health Insurance and Medical Expenses: The non-custodial parent may be required to cover health insurance premiums for the child. They may also pay a share of unreimbursed medical expenses, such as co-pays, prescription costs, or specialist visits.
Child Care Costs: Child care expenses, including daycare or after-school programs, may be shared between the parents. These costs are typically divided based on each parent’s income.
Education Expenses: The court may allocate costs for education, which can include private school tuition, tutoring, school supplies, uniforms, and other related fees.
Extracurricular Activities: Payments may also extend to extracurricular activities, such as sports teams, music lessons, art classes, or participation in school clubs.
These additional expenses are determined on a case-by-case basis, with the court often considering the child’s standard of living before the separation. The goal is to maintain continuity for the child and provide opportunities that contribute positively to their growth and development. Parents should be aware of these potential obligations when negotiating child support agreements in New York.
The CSSA Formula
New York’s Child Support Standards Act (CSSA) uses a formula to calculate each parent’s financial obligation to support the children. It applies to combined income above the poverty line and up to $143,000. Using the formula, each parent’s share of the combined gross household income is assigned a percentage, and that percentage is used to determine who pays how much. The calculation takes into account employment income, government benefits such as disability, rental income, and even cash gifts and lottery winnings.
The law states that a basic child support amount be set at a fixed percentage of combined parental income, with the exact percentage depending on the number of children requiring support. For one child, the amount is 17%. Other percentages are:
25% for two children
29% for three children
31% for four children
At least 35% for five or more children
For higher-income parents who exceed the $143,000 threshold, the court may use the percentages established by the CSSA, which usually results in a larger percentage of income being ordered in child support. This is based on the assumption of higher discretionary income. Alternatively, the court may consider factors like the parent’s financial means and additional needs of the child to arrive at a support order it deems fair.
child support lawyer in New York City
If I Make $1,000 A Week How Much Child Support Do I Pay?
Child support in New York is computed through a structured formula. Generally, parents are obliged to make support payments determined by their income. This income encompasses various sources, including but not limited to pensions, fellowships, annuities, workers’ compensation benefits, unemployment, Social Security, retirement benefits, and additional income streams.
Certain deductions can be made from this income, such as taxes, other child support obligations, expenses associated with operating a business, alimony commitments, or public assistance. There could be other applicable deductions depending on your circumstances.
Once the income is established, it is multiplied by a specified percentage. The percentage fluctuates depending on the number of children the obligated parent must provide for. It is important to note that the level of support may differ from the recommended guideline amount, potentially higher or lower.
To determine the exact amount of child support in a specific case, you would need to input all relevant information into the New York child support calculation formula, or consult with a legal professional who can provide more tailored advice based on your individual situation.
A Manhattan child support lawyer can be your essential resource when addressing child support concerns in New York. At The Law Office of Richard Roman Shum, Esq., our lawyers can guide you through the details of child support calculations, ensuring that you understand your rights and obligations. We work diligently to assess your unique financial circumstances, applying the latest state guidelines to calculate a fair and equitable child support arrangement. Contact us today and let us help secure a brighter future for your child.
Modification of Child Support Order
Each party can file a petition for modification of the order of child support if there are changes in either of their circumstances. A modification petition must be filed by the party seeking to change the order. It should include a statement about the proposed change. A summons and the petition must be delivered to both parties. The court will then hold a hearing to make a judgment on whether the child support order needs to be changed.
All orders paid to the Support Collections Unit are subject to an automatic review every three years. This review is done to see if there is any need for an adjustment in the child support order. The review will be done following the request of either party or in cases when the parent with custody of the child receives public aid. Each party is notified that they have the right to ask the Support Collections Unit for a review of an order and are also notified about any possible changes in the order. They may ask for a hearing before the Support Magistrate if they are not satisfied with the new order. Then, a new support order may be established.
While it is possible to use a DIY form to make a petition for changing a child support order, speaking to an experienced child support lawyer can be very helpful. A skilled lawyer may be able to help you avoid making mistakes on the petition and can help ensure that you understand your rights and responsibilities in the child support order.
Call the Law Office of Richard Roman Shum, Esq. today to speak with a skilled child support lawyer.
Can Parents Agree to No Child Support
Children have the right to benefit from the income and standard of living of both parents, even if they no longer live together. Parents may create child support agreements outside of the Child Support Standards Act (CSSA) by reaching a stipulation outside of court. However, custodial parents are unable to waive child support completely, but they may agree on the amount of support as long as it meets the children’s needs and adheres to the CSSA guidelines.
For an opt-out agreement to be valid, both parents must willingly and knowingly agree to the arrangement. The agreement must acknowledge the CSSA guidelines and include a copy of the CSSA guidelines chart for pro se parties. It must also state that a support order based on the guidelines would typically be correct. Furthermore, if the agreement deviates from the CSSA guidelines, it must include the amount that would have been awarded under the CSSA and the reasons for not providing for payment of that amount.
If an opt-out agreement is not valid, child support will be established based on the CSSA. Therefore, it is vital for parents to work closely with their attorney to fully understand child support law and their child support arrangements.
While parents cannot completely waive child support, they can agree on a different amount or arrangement outside the CSSA guidelines if specific requirements are met and the children’s needs are met. It is crucial to seek the guidance of a skilled New York child support lawyer to ensure that the agreement is valid and in the best interest of the children involved.
What Are Valid Reasons for Modifying a Child Support Order?
Valid reasons for modifying a child support order in New York include a substantial change in circumstances, such as job loss, increased income, or a change in custody. A modification may also be granted if three years have passed since the last order or if income has changed by 15% or more.
Your Ex Is Under-Reporting Income
If you’re convinced that your ex makes a lot more money than he or she is reporting, the court can investigate further. A judge has the authority to impute income to parents who are unemployed or appear to be reporting less money than they are actually making. Income imputation is commonly used when a parent appears to be remaining underemployed or even unemployed to avoid paying child support.
Your Ex Won’t Pay
Just because a parent refuses to pay child support doesn’t mean it can’t be collected. The Child Support Enforcement Unit can garnish wages, claim a portion of unemployment benefits or a tax refund, and in extreme cases, seize the contents of a non-payor’s bank accounts. The parent could even lose their driver’s license and go to jail for refusing to obey a court order.
Child support can be a complicated matter. At the Law Office of Richard Roman Shum, Esq., our Manhattan child support lawyers can assist you in determining what you owe or can expect to receive. If there are special circumstances or your ex is being deceptive about income, you want a diligent and determined attorney in your corner. We can help you get the support your children need or ensure that the amount you are being asked to pay is fair. For more information or to schedule a free and confidential consultation, contact us today at (646) 259-3416.
from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/new-york-child-support-what-every-divorcing-parent-needs-to-know/
Oftentimes, marriages are as much about legal agreements as they are romantic partnerships, leading to many couples turning to prenuptial agreements to safeguard their future. One specific provision that is gaining attention is the infidelity clause. This clause, essentially a contractual agreement between spouses, imposes financial penalties on a partner who commits adultery. While the idea of planning for such a personal betrayal might seem cynical, these clauses are increasingly seen as practical tools for managing the risks associated with marriage, particularly when substantial assets or business interests are involved.
Drafting an infidelity clause and ensuring its enforceability under New York state’s laws can be challenging. If you’re in New York and considering integrating such a clause into your prenuptial agreement, or if you have any questions about how an infidelity clause might impact your marriage legally, it’s crucial to seek professional legal advice. Experienced Manhattan family law attorney Richard Roman Shum can help you create a prenuptial agreement that aligns with your personal and financial goals while standing firm under legal scrutiny. Contact the Law Office of Richard Roman Shum, Esq. today at (646) 259-3416 to schedule a consultation.
Definition and Purpose of Prenuptial Agreements
In New York, a prenuptial agreement is a contract between two people planning to marry that outlines the ownership and division of their financial assets and liabilities should the marriage end. The purpose of a prenup is multifaceted: it protects assets acquired before marriage, clarifies financial responsibilities during the marriage, and mitigates potential conflicts in the event of a divorce, thereby simplifying the divorce process.
Benefits of Having a Prenuptial Agreement
A prenuptial agreement offers several advantages that can be crucial for both parties entering a marriage:
Financial Clarity and Protection: It provides clear guidelines on the treatment of assets and liabilities, offering protection for personal and business assets accumulated before marriage.
Protection Against Debts: It can designate which spouse is responsible for pre-marital debts, thus protecting the other spouse from having to assume responsibility for those debts in the event of a divorce.
Estate Planning and Family Protection: Especially important in blended families or where one or both parties have significant assets, a prenup ensures that assets are distributed according to the wishes of the spouses, rather than default state laws.
Reducing Conflicts and Legal Costs in Divorce: Agreeing in advance on the division of assets allows couples to avoid lengthy disputes and reduce the high costs often associated with divorce proceedings.
Common Provisions in Prenuptial Agreements
A prenuptial agreement typically includes several key provisions that address the financial aspects of marriage and potential divorce:
Division of Property: It details how assets and properties acquired before and during the marriage will be handled during a divorce.
Spousal Support: It establishes conditions under which one spouse will provide financial support to the other during or after a divorce, including the amount and duration of the support.
Debt Liability: The prenup can specify which spouse is responsible for debts incurred before and during the marriage, protecting the other spouse from assuming unwanted financial burdens.
Including such provisions in prenuptial agreements helps safeguard individual interests while promoting fairness and mutual respect within the marriage, aligning with New York’s laws and judicial precedents.
What is an Infidelity Clause in a Prenup?
An infidelity clause in a prenup penalizes a spouse financially for cheating. It sets specific consequences, such as monetary damages or loss of assets, if one partner is unfaithful. This clause aims to deter infidelity and protect the injured spouse during divorce negotiations.
An infidelity clause, often referred to as a “no cheating” or “cheating clause,” is a provision in a prenuptial agreement that specifies the repercussions if one spouse commits adultery. This clause typically mandates that the cheating spouse pay a predetermined amount of money to the non-offending party. For instance, a clause might require a spouse who has committed infidelity to pay $50,000 to their partner. The purpose of this clause is not just to penalize the offending spouse but also to provide financial compensation for the emotional distress and potential economic impacts caused by the infidelity.
Importance of Including an Infidelity Clause
Including an infidelity clause in a prenuptial agreement serves several purposes:
Deterrence: A financial penalty in the clause acts as a deterrent against infidelity.
Protection: It provides a sense of security for the spouse who might otherwise feel vulnerable to the emotional and financial ramifications of their partner’s unfaithfulness.
Compensation: The clause ensures that the aggrieved spouse can receive some form of recompense for the emotional turmoil endured.
Clarity and Fairness: It sets clear expectations and consequences, thereby potentially preventing disputes over infidelity during divorce proceedings.
Legal Considerations for Including an Infidelity Clause in New York
In New York, the inclusion of an infidelity clause in a prenuptial agreement presents several legal considerations that couples must weigh carefully. New York’s legal system, which favors no-fault divorce principles, generally does not support the enforcement of lifestyle clauses such as those mandating fidelity. The rationale behind this is that such clauses are viewed as contrary to the spirit of no-fault divorce laws, which aim to simplify the divorce process by avoiding the assignment of blame for the dissolution of the marriage.
Consequently, even if an infidelity clause is included in a prenuptial agreement, there is a significant risk that a New York court will choose not to enforce it, especially if the clause is deemed to promote discord or if the penalties stipulated are excessively punitive. This non-enforcement extends to concerns over the potential for such clauses to provoke invasive and contentious litigation, as proving adultery requires substantial and often intrusive evidence, which can complicate and prolong divorce proceedings.
Moreover, there is a risk that if an infidelity clause is perceived as unconscionable, it could jeopardize the validity of the entire agreement, not just the contentious clause. Given these considerations, couples in New York who are considering incorporating an infidelity clause into their prenuptial agreements are advised to consult with experienced family lawyers. This legal guidance can help ensure that any agreement made aligns with current legal standards and realistically reflects what can be enforced, thereby safeguarding other critical aspects of the prenuptial agreement.
How to Talk About an Infidelity Clause Before Marriage
Discussing an infidelity clause with your partner before marriage requires sensitivity and transparency. This type of clause, often part of a prenuptial agreement, sets out financial penalties if one partner is unfaithful. It’s a delicate topic that needs to be approached with care to maintain trust and mutual respect.
Choose the Right Time and Setting: Choose a calm, distraction-free moment to start the conversation, ideally when both of you are relaxed and emotionally available. A private, quiet environment can make the discussion more comfortable and productive.
Start with Broader Prenuptial Topics: Begin by talking about the prenuptial agreement in general. Discuss what a prenup is and why it’s beneficial for both parties. This can naturally lead to more specific clauses like the infidelity clause.
Explain the Purpose Clearly: Clarify that an infidelity clause is not about distrust but about protecting both parties and ensuring mutual respect. Highlight that this clause can provide clarity and security, which strengthens the relationship.
Speak from Personal Values and Goals: Share why fidelity is valuable to you and how an infidelity clause aligns with your relationship goals. This can help personalize the discussion and anchor it in shared values rather than accusations or fear.
Foster Open Communication: Invite your partner to share their thoughts and feelings about the clause. Practice active listening by staying open-minded, avoiding interruptions, and responding with empathy to build a respectful and supportive dialogue.
Discuss Definitions and Consequences: Define what constitutes infidelity in your relationship and agree on the consequences that will be fair to both parties. Specificity helps prevent potential disputes in the future.
Consult a Family Law Attorney Together: After a preliminary agreement between partners, it’s beneficial to consult with a family law attorney who can offer legal advice specific to New York. While infidelity clauses are not specifically addressed by New York law regarding their enforceability, a lawyer can provide guidance based on similar cases and current legal standards.
Approaching the topic of an infidelity clause thoughtfully can help ensure that the agreement strengthens the trust and commitment in your relationship, rather than undermining it.
Drafting an Infidelity Clause in a Prenup
Incorporating an infidelity clause in a prenuptial agreement requires careful consideration and clear drafting to ensure that it aligns with New York legal standards and effectively addresses the concerns and expectations of both parties. This section of the prenup can be delicate and requires tactful handling to respect the sensitivities involved while protecting the interests of both spouses.
Key Elements to Include in an Infidelity Clause
When drafting an infidelity clause, certain key elements are crucial to its effectiveness and enforceability:
Definition of Infidelity: Clearly define what constitutes infidelity in the relationship. This can range from physical relationships to emotional affairs, depending on what the couple agrees upon.
Consequences of Infidelity: Specify the financial penalties or adjustments to the division of assets that will occur if the clause is violated. This could include forfeitures of specific assets or alterations to spousal support.
Proof Requirements: Establish what evidence is required to prove infidelity. This might include the standard of proof, such as ‘preponderance of the evidence’ typical in civil cases, or a higher standard depending on the agreement.
Legal Compliance: Ensure the clause does not violate New York laws or public policy. For example, it shouldn’t incentivize divorce or provide unreasonable penalties that could be seen as punitive.
Approaches to Defining Infidelity in the Prenup
Defining infidelity can be subjective and varies significantly between relationships. Some approaches to defining infidelity in prenuptial agreements include:
Broad Definitions: Some couples choose a broad definition that includes any romantic or sexual activity with a person outside the marriage, which can be easier to prove but might capture behaviors one partner does not view as cheating.
Narrow Definitions: Others may specify certain behaviors, such as physical acts, that count as infidelity, requiring more precise proof but ensuring that both parties are clear on what constitutes a breach of the clause.
Confidentiality and Privacy Considerations
Confidentiality and privacy are critical considerations when drafting an infidelity clause in a prenuptial agreement, particularly due to the personal and sensitive nature of the subject. It is essential to outline clearly how evidence of infidelity will be handled to ensure it complies with privacy laws and maintains discretion. This includes specifying who will have access to this information and the conditions under which it can be disclosed.
Additionally, the agreement should include strict limitations on the disclosure of details regarding the infidelity and any related legal proceedings. These restrictions help manage reputational risks and minimize emotional distress, ensuring that the information does not become unnecessarily public and is only used for purposes outlined in the prenup. Integrating these privacy safeguards allows couples to protect their personal information while addressing serious matters within their relationship in a respectful and legally compliant manner.
Do Infidelity Clauses Hold Up?
Infidelity clauses in prenuptial agreements are a topic of debate, especially in states like New York where the law on enforceability is not straightforward. New York’s stance as a no-fault divorce state means that the process of divorce does not typically involve proving wrongdoing by either party. This approach can influence how courts view prenuptial agreements that contain lifestyle clauses such as those requiring fidelity.
When a couple includes an infidelity clause in their prenuptial agreement, they might believe it adds a layer of protection to the marriage. However, the reality in court can be quite different. New York courts are generally hesitant to enforce such clauses. The reasoning behind this hesitance is that enforcing a clause focused on personal behavior, like fidelity, could lead to increased marital discord.
The decision to uphold an infidelity clause depends on various factors. Courts look at how clear and specific the clause is, whether both parties understood and agreed to the terms clearly, and whether the clause is considered fair to both parties involved. If a clause is vague, seems to foster conflict, or is disproportionately punitive, it is less likely to be enforced.
For couples considering an infidelity clause, it is important to understand that while such a clause can be drafted, its enforceability is uncertain and can significantly vary based on the specifics of the case and the discretion of the court. Engaging a skilled Manhattan family law attorney is crucial to create a comprehensive prenuptial agreement with clauses that stand a better chance of being upheld in court.
What Happens if Both Spouses Commit Infidelity?
If both spouses commit infidelity, many prenups either void the clause or treat the offenses equally, canceling penalties. Courts may dismiss financial penalties due to mutual fault, especially in no-fault divorce states. Final outcomes depend on the prenup’s wording and local divorce laws.
Factors Affecting the Enforceability of Infidelity Clauses
The enforceability of infidelity clauses in New York depends on several important factors, showing how legal rules and changing social values affect such agreements. When considering whether such a clause will hold up in court, the following factors come prominently into play:
Alignment with Public Policy
New York courts typically avoid intervening in matters of personal morals and lifestyle choices, in line with the state’s no-fault divorce laws. The courts generally view marriage as a private interpersonal relationship whose boundaries shouldn’t be dictated by legal contracts concerning personal behavior such as fidelity. Thus, clauses that attempt to enforce certain behaviors or penalize infidelity can be seen as contrary to public policy.
Evidence and Proof Requirements
For an infidelity clause to be enforceable, concrete proof of adultery must be provided, which can be difficult and intrusive to obtain. New York requires clear and convincing evidence for claims of adultery, which often involves private details and can lead to lengthy and invasive proceedings. This high burden of proof and the personal nature of the evidence can deter courts from enforcing such clauses.
Fairness and Conscionability
An infidelity clause must not only be clear in its stipulations but also reasonable and fair in its consequences. If a clause imposes severe penalties that are disproportionate to the nature of the infidelity or the context of the marriage, it may be deemed unconscionable. New York courts have the discretion to invalidate any provisions of a prenuptial agreement that appear overly punitive or that could lead to an unjust outcome.
Overall Context of the Prenuptial Agreement
The context in which the infidelity clause is framed within the prenuptial agreement also matters. If the rest of the agreement is deemed fair and equitable, the courts might choose to selectively enforce parts of it while disregarding the infidelity clause if it conflicts with state policies or principles of fairness.
Jurisprudential Variability
Although there is a general trend in New York against the enforceability of infidelity clauses, outcomes can vary significantly based on the specifics of the case and the inclinations of individual judges. Jurisprudential opinions on such matters can evolve, and occasionally, exceptions are made based on unique circumstances or particularly compelling arguments regarding the intentions and mutual understanding of both parties at the time of signing the agreement.
While it is possible for an infidelity clause to be enforced in New York, the likelihood is generally low due to the state’s legal framework and judicial preferences. Couples considering such clauses should approach them as more of a symbolic gesture or a tool for initiating discussions about expectations and values, rather than as a dependable legal safeguard. Consulting with a knowledgeable family law attorney can provide critical insights and guidance on the practical implications of including such a clause in a prenuptial agreement.
Factor
Description
Alignment with Public Policy
New York courts tend to avoid intervening in matters of personal morals and view marriage as a private relationship, potentially conflicting with infidelity clauses.
Evidence and Proof Requirements
Concrete proof of adultery is required for enforcement, which can be intrusive and challenging to obtain, given New York’s high evidentiary standards.
Fairness and Conscionability
Infidelity clauses must be fair and reasonable; severe penalties may render them unconscionable, leading to potential invalidation by the courts.
Overall Context of the Prenup
The fairness of the entire prenuptial agreement matters; if the rest of the agreement is equitable, courts may choose to selectively enforce or invalidate clauses.
Jurisprudential Variability
Outcomes can vary based on individual judges and case specifics, with occasional exceptions made based on evolving jurisprudence or compelling arguments.
Role of Infidelity Clauses in Divorce Proceedings in New York
In New York, a state that follows no-fault divorce laws, the role of infidelity clauses in divorce proceedings can be nuanced and often symbolic rather than strictly legal.
Impact of an Infidelity Clause on Alimony and Asset Division
Under New York law, the introduction of no-fault divorce means that the courts generally do not consider marital misconduct, such as infidelity, when determining alimony or asset division. Alimony, also known as spousal support in New York, is typically decided based on each spouse’s financial need, earning capacity, and other economic factors, not on moral considerations. However, if an infidelity clause is included in a prenuptial or postnuptial agreement and is deemed enforceable by a court, it might influence these decisions. For instance, the clause may specify financial penalties for infidelity, which could effectively reduce the amount of alimony or alter the asset distribution that the unfaithful spouse receives. Such enforcement would be an exception rather than the rule, contingent upon the specific language and conditions outlined in the agreement.
Burden of Proof in Proving Infidelity
In cases where an infidelity clause is part of the prenuptial agreement and one party seeks to enforce it, the burden of proof rests on the accuser. This person must provide clear and convincing evidence of the other’s infidelity, which can be challenging. Evidence might include communications such as texts or emails, witness statements, or other documentation deemed relevant. However, proving infidelity in New York, where the divorce process is primarily no-fault, does not typically affect the core divorce outcomes like asset division or child custody directly unless tied to specific contractual agreements.
Get the Legal Help You Need: Consult with an Experienced Manhattan Family Law Attorney
The infidelity clause is more than just a precaution; it’s a strategic component of modern prenuptial agreements that can influence the financial and emotional landscape of a marriage. Whether you view such clauses as essential safeguards or as indicators of trust issues within a relationship, their effectiveness and enforceability vary by case and state laws. Before making any decisions, it’s vital to have a clear understanding of all implications.
Should you find yourself contemplating the incorporation of an infidelity clause, or if you have any other family law concerns, consider reaching out to a knowledgeable attorney who can provide tailored advice and guidance. Remember, the right legal counsel can make all the difference in protecting your interests and securing your future. Contact the Law Office of Richard Roman Shum, Esq. today at (646) 259-3416 to schedule a consultation.
from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/what-is-the-prenup-infidelity-clause/
Like most legal processes, filing for a divorce can be intimidating for most people. Everyone has heard stories about how filing for a divorce in New York can be a lengthy process. Though it may be tempting to go at it by yourself, it is important to consider getting the help of a skilled Manhattan divorce lawyer. An attorney can prepare and verify your documents to prevent costly mistakes. An attorney can also help save you the grief it would take to negotiate and meet with your spouse in the event of a contentious divorce, and provide insight on how to handle divorce when children are involved.
At the Law Office of Richard Roman Shum, we provide quality and compassionate legal counsel to individuals seeking to file a divorce in New York. Contact us today at (646) 259-3416 to schedule a complimentary consultation with one of our experienced New York divorce attorneys.
“In both cases attorney Shum was great to work with. Navigating both of these situations was, at times, confusing. Attorney Shum made the details of both matters easy for me to comprehend.”
Understanding the Divorce Process in New York
In New York, either spouse can file for divorce. The state recognizes both fault-based and no-fault divorces. New York divorce laws also include provisions for equitable distribution of marital property, which means the court divides marital property in a way that is fair but not necessarily equal.
Types of Divorce in New York
Divorce proceedings can be categorized into two primary types: uncontested and contested. Each type represents a different pathway to the dissolution of a marriage, carrying its own set of characteristics, requirements, and potential challenges.
Uncontested Divorce
An uncontested divorce is when both parties agree on all aspects of the divorce, including property division, child custody, and spousal support. This is typically a smoother and quicker process as there are no disputes for the court to resolve. Parties involved in an uncontested divorce often work with their respective attorneys to draft a settlement agreement, which is then submitted to the court for approval. Often, no court appearances may be required.
Contested Divorce
A contested divorce, on the other hand, is when the parties cannot agree on one or more issues, and the court must decide. These divorces are often more challenging and time-consuming. They may require a trial where both parties present evidence and arguments for their desired outcomes. It’s essential to have a knowledgeable Manhattan divorce lawyer to represent your interests and guide you through the process.
Residency Requirements in New York
Before filing for divorce in New York, it’s important to understand the state’s residency requirements. At least one of the following points has to be satisfied to meet the requirement:
At least one spouse must have been a New York resident for a continuous period of two years before filing.
If the couple was married in New York, and at least one spouse has lived in the state for a continuous year, they can file for divorce.
If both spouses are residents of New York at the time of filing, and the grounds for the divorce occurred in the state, they can file without regard to the length of residency.
These residency requirements ensure that New York courts have jurisdiction over your case and can make legally binding decisions regarding your divorce.
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What are the Steps in the Divorce Process in New York?
The divorce process in New York follows a structured legal path designed to address the dissolution of marriage and related issues such as property division, child custody, support, and spousal maintenance. Whether the divorce is contested or uncontested significantly affects the complexity and length of the proceedings. Here are the key steps:
STEP 1: Filing
The divorce process officially begins when you file a summons and complaint with the court. The summons informs your spouse that you are initiating a divorce action, while the complaint outlines the grounds for your divorce and your requests regarding property division, spousal support, child custody, and child support.
When preparing these documents, it’s critical to be thorough and accurate. Any errors or omissions can potentially delay the divorce process or impact the final divorce judgment. Filing for divorce also designates the parties as a Plaintiff and a Defendant. The Plaintiff is the spouse who files for the divorce, and their husband or wife is designated as the Defendant.
If you and your spouse have agreed to the terms of your divorce and have an existing Settlement Agreement, you may also file it at the same time as filing for the divorce to be initiated. As there are grounds allowing for divorce even if the Defendant is not present, a Plaintiff can petition for a divorce in absentia in New York.
If the Defendant fails to respond to the court summons, a divorce by default may be obtained
Divorce by publication may also be an available option if the Defendant is unreachable. Serving a divorce by publication is considered an alternative service.
The Plaintiff will need to pay a fee of $210 to have an index number assigned to the case. In the case that the Plaintiff does not have the financial capability to pay for the fee, it is possible to ask for the court fees to be waived.
STEP 2: Serving the Defendant
Informing the Defendant that the Plaintiff has filed for a divorce is an important step in the divorce process. This is to ensure that the Defendant’s rights are also protected. A Summons With Notice (or a Summons and Verified Complaint, depending on the grounds for divorce) needs to be delivered to the Defendant.
A copy of the following documents must be served to the Defendant along with the summons, with the appropriate index number indicated on each document:
Notice of Automatic Order
Notice Concerning Continuation of Health Care Coverage
If the Defendant will not contest the grounds of the divorce (including aspects like child custody, child support, etc.) and can return the “Affidavit of Defendant” signed and notarized, the Plaintiff can directly provide the documents to the Defendant. However, if you are unsure whether the Defendant will contest the divorce or will return the affidavit, the papers must be “served” to the Defendant.
Service
New York law requires that the Defendant in a divorce receive the Summons with Notice or Summons and Verified Complaint personally, barring specific exemptions.
A Plaintiff in a divorce action cannot serve the papers themselves, but must have another legal adult (18 years and above) deliver the papers to the Defendant.
The papers must be served 120 days from the date when the papers were filed with the County Clerk
If the Defendant is currently residing in New York, the server for the divorce must be a New York resident. If the Defendant is being served out of New York jurisdiction, the server must be a person who can serve the divorce papers according to the law of that state.
The server must fill out an Affidavit of Service and return the document to the Plaintiff as proof that the Defendant was served in accordance with the law.
As mentioned, there are cases wherein service might be done unconventionally.
If the Plaintiff cannot locate their spouse, it is possible to request permission from the court to publish a notice in the newspaper or at the courthouse indicating the divorce.
In March 2015, New York County declared a landmark decision allowing a Plaintiff who had no other viable alternatives to service to serve the divorce papers through Facebook (Baidoo v Blood-Dzraku: 2015 NY Slip Op 25096)
It is important to seek the help of an experienced New York family law and divorce attorney to be able to understand the available options for you if you would like an alternative way to serve your divorce papers. Contact the Law Office of Richard Roman Shum today at (646) 259-3416 for a free consultation. Our skilled New York divorce attorneys may be able to help you explore your options with regard to service and advise you on other aspects of your divorce.
“Attorney Richard Shum assisted my family and I with a very difficult landlord. At a time of a lot of concern and uncertainty, Mr. Shum was there for us every inch of the way, his confidence and vast knowledge of the law, together with his passion for it and for helping people, provided us the serenity to go on about our life, while he took care of they daunting matter. At the end we reached an agreement only Atterney Shum could achieve. Since I recommended his service to any friends that is in need of help with legal matters, from Landlord/Tenant to family court, and in every case I receive a thank you call from said friends, following the successful outcome he provided. So, as I say to my friends, if you need an Attorney that will fight for you, and not stress you out, call this guy. you will thank me.”
STEP 3: Defendant’s Response
If you’re the spouse who has been served with a divorce summons and complaint, your first task is to respond. In New York, you typically have 20 days to respond if you were served personally and 30 days if the papers were served in any other manner.
Your response, or answer, should address each of the statements in the complaint. You can agree or disagree with the statements, and you also have the opportunity to make your own requests regarding property division, alimony, child custody, and child support.
Failing to respond in a timely manner can result in a default judgment, where the court grants the requests of the filing spouse. Therefore, it’s crucial to respond promptly and accurately, ideally with the assistance of a Manhattan divorce lawyer.
Should the Defendant sign the Affidavit of Defendant or not respond after service (default), the process for uncontested divorce proceeds through completing the rest of the papers. The divorce papers will need to be filed either at the County Clerk’s Office or the Supreme Court Clerk’s Office
If the Affidavit of Defendant was signed and notarized, the rest of the papers may be filed with the County Clerk as soon as they are received by the Plaintiff, subject to a $125 filing fee.
STEP 4: Settlement Negotiations or Trial Preparation
Settlement negotiation or trial preparation is one of the most pivotal stages in a New York divorce. Whether a divorce is ultimately resolved through a mutual agreement or decided in court, this phase lays the groundwork for final decisions about property, support, and parenting arrangements. The path a case takes depends on the level of cooperation between the spouses and the complexity of the issues involved.
Uncontested Divorce: Settlement Negotiations
In an uncontested divorce, both parties agree on all major issues. These usually include:
Division of marital property and debts
Child custody and visitation schedules
Child support and spousal maintenance
Health insurance coverage and tax matters
The parties, often with help from attorneys or mediators, may draft and sign a Settlement Agreement (also called a Stipulation of Settlement). This contract outlines the terms agreed upon and becomes part of the final Judgment of Divorce. If the agreement is properly drafted and satisfies New York’s legal requirements, the court will generally approve it without the need for a trial or court appearance.
In these cases, paperwork—including the settlement agreement, affidavits, child support worksheets (if applicable), and the proposed judgment—is submitted to the court for review. The judge confirms that the agreement is fair and that both parties entered into it voluntarily.
Contested Divorce: Trial Preparation
If the parties cannot agree on some or all issues, the divorce becomes contested. At this point, trial preparation begins. Key elements of this stage include:
Discovery: Both parties exchange financial and personal information. This may include:
Statements of Net Worth
Tax returns
Bank records and retirement account statements
Interrogatories (written questions)
Depositions (oral questioning under oath)
Temporary Orders: Either party may ask the court for temporary relief before the final decision. This can involve temporary child custody, temporary maintenance (alimony), or exclusive use of the marital home.
Preliminary Conferences: These court-mandated meetings help streamline the case. The judge may set deadlines for discovery and encourage settlement discussions.
Motions: If there are urgent or disputed matters, attorneys may file motions for the judge to decide before trial, such as requests for temporary support or to compel discovery.
Expert Evaluations: If child custody is in dispute, the court may appoint a forensic psychologist to evaluate the parents and children. Financial experts or appraisers may also be used for complex asset division.
Settlement Efforts Continue: Even during trial preparation, judges often urge parties to settle to avoid lengthy litigation. Mediation or court conferences may help narrow disagreements.
If no agreement is reached by the trial date, the case proceeds to trial, where the judge hears evidence and testimony before issuing final rulings on all disputed matters.
STEP 5: Court Appearances & Trial (if necessary)
Court appearances and trial become necessary in a New York divorce when spouses cannot resolve all issues through negotiation or mediation. These stages allow the court to supervise the process, manage the case’s progress, and ultimately make binding decisions on contested matters. The level of court involvement depends on how much the parties agree on and how cooperative they are.
Court Appearances
Once the divorce is filed and the defendant has responded, the court will typically schedule an initial Preliminary Conference. This conference sets the tone and timeline for the case. During this appearance:
The judge identifies disputed issues (e.g., custody, property division, support).
Deadlines for discovery, financial disclosures, and expert reports are set.
The court may encourage settlement and suggest mediation if appropriate.
If disagreements remain, the case continues through the litigation process. Additional court appearances may include:
Compliance Conferences: These ensure both sides are meeting court-ordered deadlines and exchanging necessary documents.
Motion Hearings: When one party asks the judge to resolve an interim issue, such as temporary custody or spousal support, the court may schedule a hearing to consider arguments and issue a ruling.
Settlement Conferences: These are often scheduled shortly before trial to give parties one last opportunity to resolve disputes outside the courtroom.
Each appearance plays a role in clarifying legal and factual issues, preparing the case for trial, and possibly avoiding trial altogether.
Trial (If Necessary)
If the case still cannot be settled, it proceeds to trial before a judge (not a jury). Divorce trials in New York are formal legal proceedings where both sides present their arguments and evidence. Key features include:
Opening Statements: Attorneys summarize their positions and outline what they intend to prove.
Presentation of Evidence: This can include financial documents, appraisals, emails, photographs, and other records.
Witness Testimony: Each spouse may testify, along with experts such as forensic accountants or child custody evaluators. Witnesses can be cross-examined by the opposing side.
Closing Arguments: Each party sums up their position, interpreting the evidence in a way that supports their desired outcome.
The judge considers the facts and the law to decide unresolved matters such as:
Equitable distribution of marital property and debts
Custody and visitation arrangements
Child support and maintenance (alimony)
Payment of legal fees
After hearing the evidence and reviewing the documents, the judge will issue a Decision and Order, which becomes part of the final Judgment of Divorce. This order is binding and must be followed unless successfully appealed or later modified by the court.
Although a trial is sometimes necessary, it is time-consuming, expensive, and emotionally taxing. For this reason, courts and attorneys often emphasize settlement whenever possible. But when trial is the only path forward, the court provides a structured, impartial forum to resolve contested divorce issues.
STEP 6: Getting and Filing the Judgment of Divorce
The Judgment of Divorce marks the official end of a marriage in New York. It is a court-issued document that includes all the terms governing the dissolution of the marital relationship. Once signed by the judge and entered with the County Clerk’s office, it becomes a legally binding order that both parties must follow.
Judgment of Divorce
The Judgment of Divorce is typically prepared by the plaintiff’s attorney or by the parties themselves in uncontested cases. It incorporates:
The grounds for divorce (such as irretrievable breakdown of the marriage)
Terms of the settlement agreement, if applicable
Court decisions on contested issues (if the case went to trial), including:
Property division: Specifies how marital assets and debts are allocated
Child custody and visitation: Defines legal and physical custody arrangements, parenting schedules, and decision-making authority
Child support: Includes the amount, frequency, and duration of payments
Spousal maintenance: Sets any obligation for alimony, including amount and length
Health insurance and tax considerations: Addresses continued coverage or division of tax benefits
The judge reviews all documentation, including financial disclosures and any required child support worksheets, before signing the judgment. If the agreement appears fair and meets statutory requirements, the court will approve it even without a hearing in an uncontested case.
Filing and Entry of Judgment
Once the judge signs the Judgment of Divorce, the next step is filing and entry:
Filing with the County Clerk: The signed judgment, along with the divorce packet (including the Settlement Agreement, if any, and required affidavits), must be submitted to the County Clerk in the Supreme Court where the case was filed.
Entry of Judgment: After the clerk processes the paperwork, the judgment is officially “entered.” This means it is logged and recorded as a public document, completing the divorce process.
Certified Copies: Either party may request certified copies of the entered Judgment of Divorce from the clerk’s office. These copies are necessary for tasks like:
Changing a name
Updating marital status with government agencies
Modifying support orders
Enforcing property division
Once entered, the Judgment of Divorce is final. However, either party can later file for modification of certain terms (like support or custody) if circumstances significantly change. Appeals are also possible, but must be based on legal error or procedural irregularities during the divorce process.
The entry of the judgment is the conclusive legal step that finalizes the divorce and formally dissolves the marriage under New York law.
Contested Divorce
The process for filing a contested divorce is roughly the same as an uncontested divorce. The shift in the process will branch out the moment the Defendant indicates that they do not agree with the terms of the divorce after being served the papers.
Once the Defendant files and serves the Plaintiff with their Answer, a Request for Judicial Intervention (RJI) must be filed within 45 days from the service of the Summons with Notice or Summons and Complaint. If a Notice of No Necessity is filed by both parties, the Request for Judicial Intervention must be filed within 120 days. Filing the RJI costs $95.
A preliminary conference will be held within 45 days of filing the RJI, which will initiate the process of the exchange of papers and information between the parties. One of the major documents to be exchanged and filed with the court is the spouses’ individual Net Worth Statements. A compliance conference may also be ordered by the court if necessary.
After some additional conferences and meetings where the attendance of both parties may be required, Discovery must be completed with the Note of Issue being filed within 6 months from the preliminary conference. Discovery is the process by which both parties collect evidence on the grounds of the case, either from the opposing party or third-party sources. Discovery may be necessary in cases where there may be conditions like domestic abuse or adultery that require the establishment of supporting evidence. Filing the Note of Issue indicates that both parties are ready to initiate the trial.
In addition to the Note of Issue, a Statement of Proposed Disposition must also be filed. This document indicates the manner in which each spouse thinks the contested parts of the divorce should be resolved by the court. In most cases, the trial will be held within 6 months of the date of the preliminary conference.
Once judgment has been indicated on the court records, additional documents must be submitted or mailed to the Matrimonial Clerk’s Office. These documents include the Notice of Settlement, Findings of Fact and Conclusions of Law, and Judgment. This period is crucial as once the papers have been filed and signed, any changes to the settlement agreement may not be entertained easily by the court.
How to Tell Your Spouse You Want a Divorce
Divorce is a difficult topic, fraught with heavy emotions and implications. However, when it becomes inevitable, it’s crucial to approach your spouse with clarity, compassion, and respect. Here’s how to tell your spouse you want a divorce.
Start by preparing yourself emotionally. Understand that the conversation will be difficult, and you may receive a strong reaction. Try to anticipate the emotions that may arise and think about how you’ll handle them. Consider speaking to a counselor or therapist to help navigate your feelings.
Timing is crucial. Choose a calm, private environment and a time when both of you are not preoccupied or stressed. Do not rush the conversation; ensure you have ample time to talk things through.
When you start the conversation, be clear and direct about your intentions. Use “I” statements to express your feelings, such as “I feel unhappy” or “I have tried, but I cannot continue”, instead of blaming your spouse. This will help you communicate your feelings without provoking defensiveness.
While it’s important to be firm about your decision, also show empathy towards your spouse. Understand their feelings and reactions, even if they’re negative. Remember, this news is likely to be as difficult for them to hear as it is for you to tell.
Avoid getting into the specifics of splitting assets or custody during this initial conversation. This discussion is about your emotional disconnection and the decision to divorce, not about the logistics, which can be discussed later.
Remember, it’s important to maintain respect and compassion throughout the process, despite the pain and difficulties. After all, this person was once your partner in life.
“I was very impressed with how astute, detail oriented and methodical Richard is with his work. He is experienced, technically proficient, highly effective and an excellent negotiator, who is proactive and knows the law inside and out. Richard kept me informed regularly and was responsive to all my requests and queries. All the traits that any good lawyer worth his salt should possess.”
Category
Uncontested Divorce
Contested Divorce
Definition
Both spouses agree on terms of the divorce
Spouses cannot agree on terms of the divorce
Complexity
Generally less complex
Generally more complex
Legal Assistance
May not require legal assistance
Usually requires legal assistance
Timeframe
Can be finalized relatively quickly
May take longer to finalize
Cost
May be less expensive
May be more expensive
Required Documents
Settlement Agreement, Affidavit of Defendant (if applicable)
Request for Judicial Intervention (RJI), Net Worth Statements, Note of Issue, Statement of Proposed Disposition, and other relevant documents depending on the case
Court Proceedings
May not require court proceedings
May involve court proceedings such as conferences, Discovery, and trial
Outcome
Finalized with a signed judgment of divorce
Finalized with a signed judgment of divorce, with the court deciding on contested issues if necessary
How to File for Divorce in New York
In order to initiate a divorce in New York, certain prerequisites must be fulfilled, such as meeting residency requirements and determining grounds for divorce. Residency requirements mandate that either you or your spouse must have resided in New York for a minimum of two consecutive years before commencing divorce proceedings, or for at least one continuous year if specific criteria are met. There are various grounds for divorce, which may comprise irreparable deterioration of the relationship, cruel and inhumane treatment, desertion, incarceration, and infidelity, among others.
Once you have established that you’ve fulfilled these requirements, you can commence divorce proceedings by paying a fee of $210 to obtain an index number for the case. In order to inform the Defendant about the filing, it is necessary to serve them with a Summons With Notice or a Summons and Verified Complaint. The Defendant may respond in three ways: file an Answer, sign the Affidavit of the Defendant, or not respond. If the divorce is uncontested, the process proceeds to calendaring, and the judge will sign the judgment of divorce.
It is recommended to seek the help of an experienced New York family law and divorce attorney to keep up with the necessary documents, set expectations on the process, and explore alternative ways to serve divorce papers. The Law Office of Richard Roman Shum provides quality and compassionate legal counsel and representation to individuals seeking to file a divorce in New York.
What Happens After Divorce Papers are Served in NY?
The divorce process starts when a spouse is served with divorce papers, a significant step in initiating a divorce case. Being served means that someone other than your spouse personally hands you the legal documents, known as a Summons and Complaint. It’s important to note that receiving divorce papers in the mail or directly from your spouse does not count as proper service.
Once you’ve been formally presented with the legal documents, you’ll assume the role of the defendant within the divorce proceedings. The papers will outline the grounds for the divorce, the relief that the plaintiff (your spouse) is seeking, and the deadline by which you must respond. It’s crucial to understand that being served with divorce papers does not signify the finalization of the divorce process. Instead, it marks the beginning of the divorce proceedings, requiring you to respond within the timeframe set by the court.
In New York State, the response period after being served is 20 days. Failing to respond within this timeframe may lead to a default judgment being issued against you, granting the divorce on the terms your spouse has requested.
To respond properly, you must file a formal written response. Your response should address all the issues raised in the divorce papers, such as child custody, child support, spousal support, and division of property. Additionally, you have the option to file a counterclaim, a claim seeking other relief from your spouse.
If you’re wondering about what happens after being served divorce papers in New York, and the subsequent actions involved, it is crucial to get assistance from a skilled Manhattan divorce lawyer. At the Law Office of Richard Roman Shum, our lawyers can guide clients through the intricacies of this process. From navigating property division to negotiating child custody arrangements and spousal support, our skilled lawyers can offer you the support and clarity needed to make informed decisions as you move forward into a new chapter of your life. Contact us to schedule a consultation.
How Long Does It Take to Finalize a Divorce in New York?
Finalizing a divorce in New York State can vary in duration depending on several factors. Generally, an uncontested divorce, where both parties agree on all terms, can be completed within three months. However, if the divorce is contested, meaning the couple disagrees on financial, property, or child custody issues, the process can take a year or longer.
The time frame begins once the divorce papers are filed with the court. An uncontested divorce moves more quickly because there are no disputes requiring court intervention. After filing, there’s a mandatory processing period that typically takes a few weeks. If both parties swiftly agree on the divorce terms and execute all necessary documents, the court can finalize the divorce without significant delays.
For contested divorces, the timeline extends considerably. The discovery phase, where parties exchange relevant information, can last for several months. Court appearances, negotiations, and potential trials add to the length of the process. It’s not uncommon for a contested divorce to take 9 to 12 months, and complex cases can extend beyond a year.
Additionally, New York has a residency requirement. Before filing for divorce, either spouse must have lived in the state for at least two consecutive years, or for one year if the couple was married in New York or lived there as a married couple.
How Can a Divorce Lawyer Help Me?
Whether you are the Plaintiff or the Defendant in a divorce action, the skills and knowledge of a New York divorce attorney can be invaluable. Although hiring an attorney to file a divorce is not strictly required in New York, an experienced divorce attorney can help you keep up with the necessary documents and set your expectations on how each step of the process may take. Richard Roman Shum, a skilled New York family law and divorce attorney, is here to help.
Richard understands the impact a prolonged divorce can have on a family. He understands how a divorce can be emotionally and financially exhausting to both parties. At the Law Office of Richard Roman Shum, Esq., we aim to provide quality legal services that help alleviate the stress and anxiety of dealing with a divorce. We present a pragmatic but compassionate approach to divorce law in an effort to provide the best possible outcome for our clients.
To schedule a free consultation with Richard Roman Shum, a skilled New York divorce attorney, contact us today at (646) 259-3416 or fill out our online form.
from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/what-is-the-divorce-process-in-new-york-like/
